TIEEATTORNEYGENERAI. 

OF-XAS 

GROVER SELLERS AUSTIN xx. TEXAS 

*TroRxEY GENERAL 

Hon. Stansell Bryan 

Criminal Distr,ict Attorney 

McLennan County 

Waco, Texas 

Dear Sir: Opinion NO. O-7318 

Re: Whether or not it is lawful 

for a member of the Texas 

State Legislature to work for 

the United States Public Health 

Service as a Supervisor of 

Typhus Control. 

Your letter of recent date requesting an opinion from 

this department on the above subject matter is as follows: 

"I would appreciate It if you would advise me 

whether or not it is lawful for a member of the 

Texas State Legislature to work for the United 6tates 

Public Health Service as a Supervisor of Typhus Control, provided such member of the Legislature does 

not draw a federal salary while the Legislature is in 

session." 

In answer to our letter requesting certain information 

concerning the position mentioned in your inquiry, we received 

the following from the United States Public Health Service: 

"1 . Mr. Sam Sellers was employed off of a 

regular Civil Service Register by the Federal Gov; 

ernment with a classification of Engineering Aide, 

SP-5. 

"2 . His title of classification was Engineering 

Aide,.SP-5, when he was employed, and he still held 

that same position when he resigned. His duties were 

to work with a dusting crew on our Typhus Program. 

"3 . He received a salary from the Federal Government and not from the State Government. 

"4 . Yes, he took an oath of office the same 

as all other Federal employees when entering on duty. 
-, 

Hon. Stansell Bryan, page 2 O-7318 

“Mr. Sellers resigned this position on June 21 

1946. ” 

Article 16, Section 12, of our State Constitution provides as follows: 

“No member of Congress nor person holdlng,r 

exercising m office of urofit or trust under the 

United States, or either of them, or under any foreign 

power shall be eligible as a member of the Legislature 

-- 

or hold or exercise any Tf?oe of profit or trust under 

this State. ” 

It is generally held that the most important characteristic which distinguishes an office from a position is that the 

creation and conferring of an office Involves the delegation to 

the individual some of the sovereign functions of government. 

See 34 Texas Jurisprudence, pp. 322-326; Mechem on Public Offices, 

9 g b-10; Kimbrough v. Barnett, 93 Tex. 310, 55 S.W. 122; and 

CornmiSSIoners Court of Limestone County v. Garrett (Commlsslon 

of Appeals) 236 S.W. 970. 

We quote the following from the Limestone County case: 

“‘The most important characteristic which distinguishes an office from an employment or contract is 

that the creation and conferring of an office involves 

a delegation to the individual of some of the soverelgn functions of government, to be exercised by him 

for the benefit of the public; that some portion of the 

sovereignty of the county, either legislative, executive or judicial, attaches, for the time being, to be 

exercised for the public benefit. + + * In distinguishing between an office and an employment, the fact that 

the powers in question are created and conferred by 

law is an Important criterion. For, though an employment may be created by law, It is not necessarily so, 

but is often, if not usually, the creature of contract. 

A public office, on the other hand, is never conferred 

by contract, but finds Its source and limitations in 

some act or expression of the governmental power. * * * 

Public officers are usually-required by law to take 

the oath of office, and this fact goes far in determining the character of the duty. But the taking of the 

oath is not an indispensable criterion, and the office 

may exist without It, for, as has been said, the oath 

is a mere incident and constitutes no part of the 

office. * * + If a duty be a continuing one, which Is 

defined by~rules prescribed by the government, and not 

by contract, whLch an individual is appointed by gov- 
Hon. Stansell Bryan, page 3 0 -7318 

ernment to perform, who enteres on the duties pertalnlng to his statlon without any contract defining them, if those duties continue though the 

person be changed, it seems very difficult to dlstinguish such a charge or employement from an 

officer. * * * At the same time, however, this 

element of continuance cannot be considered as indispensable, for, if the other elements are present, It can make no difference whether there be 

one act or a series of acts to be done, whether 

the office expires as soon as the one act is done, 

or is to be held for years, or during good behavlor.' Mechem on Public Officers, g f4 4 to 8. 

"'Public office is the right, authority, and 

duty created and conferred by law by which, for a 

given period either fixed by law or enduring at the 

pleasure of the creating power, an Individual is 

vested with some portion of the sovereign functions 

of the government to be exercised by him for the 

benefit of the public.' The correctness of this 

definition is nowhere questioned, so far as we know, 

and it is useless to add supporting authorities.' 

Kimbrough v. Barnett, 93 Tex. 310, 55 S.W. 122. 

"'A man is none the less a public officer where 

his authority is confined to narrow limits; for it is 

the duty of his office and the nature of that duty 

which make him an officer, and not the extent of his 

authority.'" Mechem on Public Officers, El 9. 

We have carefully considered the duties of the position 

of Federal Engineering Aide, SP-5 in the light of the foregoing 

authorities and it is our opinion that such position does not 

constitute an office of profit or trust under the United States, 

but constitutes a position of profIt or trust under the United 

States. 

We'call your attention, however, to Section 33 of Article 

16 of our State Constitution which provides in part as follows: 

'The Accounting Officers of this State shall 

neither draw nor pay a warrant upon the Treasury In 

favor of any person, for salary or compensation as 

agent, officer or appointee, who holds at the same time 

any other office or position of honor, trust or profit, 

under this State or the United States, except as prexed in this Constitution." 

There are certain exceptions provided in the foregoing 
Hon. Stansell Bryan, page 4 o-7318 

Section which, however, are not material to the question under 

conslderatlon. 

. 

Our Opinion No. 0-2607 in construing Section 33 of 

Article 16, stated the following: 

"It Is clear that this section does not seek 

to prohlblt the serving of the State by one inaivldual In more than one capacity. The provision 

addresses itself only to the matter of compensation. 

Thus, a man may hold two offices, or an office and 

a position of honor and trust under the State, If 

no compensation attaches to either place. But If 

he holds an office, or is an agent or appointee, 

and to such place compen sation attaches, he may 

not be paid for services rendered in that capacity 

during the period of time that he holds another 

position of honor or trust under the State or the 

United States. From this general statement as to 

what the section does and does not prohibit, we 

gather the general policy embodied therein. This 

policy seems obviously to be that no person should 

receive compensation from the State for services to 

be rendered it, when during the time such compensation is to be earned such person, by accepting and 

holding another position under the State or the 

United, States, has obligated himself to render 

services In connection with the latter positlon, 

so that he may not render full value in the first 

capacity for the compensation which the State has 

agreed to pay. So construed, we find that the 

Section is but one of the many in the Constitution 

seeking to place every conceivable safeguard about 

the expenditure of State monies. So construed, this 

Section seeks to avoid even the possibility that 

the State may not receive a full quid pro quo for 

expenditures by way of compensation for services to 

be rendered in one capacity, by reason of the person 

serving In that capacity placing himself in such a 

position that he may be tempted to neglect the 

duties of the one place for the responsibilities 

of the other." 

We quote the following from our Opinions No. O-5317: 

"If the place in the Federal Civil Service is an 

'Office', then, upon accepting and qualifying therefor 

the member of the Legislature will automatically forfeit and vacate his office as member of the Texas Legislature, perforce of the provisions of the Constitu- 
Hon. Stansell Bryan, page 5 O-7318 

tion, Article 16, Sec. 12. If the place in the Federal 

Civil Service is not an 'office' but a 'position' of 

'honor trust or profit', then, under Sec. 33, the 

member if the Legislature could not be compensated as 

such If, over the period for which compensation as a 

member of the Legislature was claimed, he also held 

the place in the Federal Civil Service. Since members 

of the Legislature are paid per diem only for the days 

during which the Legislature Is in session, the member 

of the Legislature would not prejudice his right to 

compensation as such if he held the position in the 

Federal Civil Service only during periods in which the 

Legislature was not in session. Sec. 33 deprives the 

officer, agent or appointee of the right to be compensated with respect only to the period during which 

he holds another office or position of honor, trust 

or profit." 

In view of the foregoing, it is our further opinion '~ 

that a Legislator cannot receive any compensation for his services as Legislator while he holds the position with the Federal 

Governmeik referred to above. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By s/J.C. Davis, Jr. 

J.C. Davis, Jr. 

By s/John Reeves 

John Reeves 

JR:djm:wc 

APPROVED AUG 12, 1946 

s/Carlos C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinion Committee By s/BWB Chairman